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CAVANAUGH: It's not often that voters are asked to make a literal decision between life and death, but that's the issue that faces voters in proposition 34. It would eliminate the death penalty in California. It would replace capital punishment with life in prison without the possibility of parole. Tom Fudge produced this report on the arguments for and against this state ballot measure.

FUDGE: This month, at least a dozen religious leaders gathered at the first Methodist church in mission valley. The star of the gathering of the sister Helen play John, the Louisiana nun who wrote dead man walking.

NEW SPEAKER: A lot of time we ask the question, who deserves to die? We got to ask the flip question, who deserves to kill them? Do we as a society? No, it diminishes life.

FUDGE: This group was religiously diverse, Jews, Christians, and Muslims, but they all urged to vote for prop 34, to repeal the death penalty in California. Madison Shockley is with the pilgrim united church of Christ.

NEW SPEAKER: There are many punishments that can go along with rehabilitation that do not distinguish what every human deserves.

FUDGE: It would be life in prison without the possibility of parole. Among the people who see that as a better way include Ronny Carmona. In 2008, her son Arthur was killed by a machine who ran over him with his car. But she never wanted to see the offender put to death.

NEW SPEAKER: I felt the person should spend the rest of their life in prison. For me, that's justice. And a lot of people talk about the death penalty is closure. There's never any closure when you lose a loved one that way.

FUDGE: Prop 34 backers argue that no justice system is good enough to guarantee that no innocent person would ever be executed. They point out the state legislative analyst says repealing the death penalty would save California up to $100 million every year. One reason victims' families see no closure in the death penalty lies in its history. Since California reinstated the death penalty in 1978, the state has condemned nearly 900 people to death. It has executed only 13.

NEW SPEAKER: The system is broken, it's dysfunctional, and it cannot be fixed.

FUDGE: Former la district attorney gill garsety was an advocate who showed up on the initiative. But not everyone believes the death penalty should be abolished because the state has failed to make it work. State Senator Mike Gata is a democrat from Los Angeles.

NEW SPEAKER: It's disingenuous to say now the system doesn't work so we have to get rid of it.

FUDGE: Chief deputy district attorney for San Diego County agrees. In the 1990, he prosecuted Cleophus Prince who was found guilty of sexually assaulting and murdering six women. 19 years after being sentenced to the death penalty, he's still in prison.

NEW SPEAKER: Here's somebody who does that not once, not twice, but six times. Are five of those murders free ones where he doesn't do one more day in custody, no more punishment? He would have gotten life imprisonment for the one. So we send the message out, once you do one murder, you might as well do a dozen.

FUDGE: California death row inmates are much more likely to die of natural causes than execution. They typically stay on death row for more than 20 years. Lamborn says given the political will, California can speedup the appeals process. But in the end, the issue for both sides isn't about costs or delays. It's about doing what's right.

NEW SPEAKER: When we have the DNA, when we have every aspect of science coming in and saying this guy did it, and when we have a monster, why not do justice?

FUDGE: Pastor Madison Shockley.

NEW SPEAKER: We look at the death of an innocent Jesus on a Roman cross, and we learned two things. . Human beings are incapable of discerning ultimate innocence or guilt. And even in the face of guilt, God calls us to grace. Thank you.

[APPLAUSE]

CAVANAUGH: Joining me now is Tom Fudge. Hi, Tom, welcome to the show.

FUDGE: Hi, Maureen.

CAVANAUGH: And Tom Kaplan is here, welcome back.

KAPLAN: Nice to be here.

CAVANAUGH: Proponents of prop 34 this time around, when people are arguing against the death penalty, have made much of their argument about money. The state will save a lot of money if it's eliminated. But in your report, it's still that this is mostly about morality and justice

KAPLAN: It's a very emotional argument for both sides. And I think we heard district attorney lamborn say he feels that when you do the worst of our crimes, the appropriate punishment is death. And he gave the example of one person who does one rape and murder, that person would get life in prison. If he does more, does he get no more punishment? To him, that is wrong. When you talk to members of the religious community, they come at it from a very different way. I think everybody agrees that some punishment needs to be given for people who commit murder, and commit terrible crimes. But the issue for them is life. When we talk about pro-life, typically we're talking about abortion issues. But at this press conference I went to, pro-life was an expression that was used quite a bit and used in the case of condemned people. They feel that life is sacred and vengeance is mine, sayeth the lord, and they apply that to our criminal justice system.

CAVANAUGH: Professor, there are other perhaps not as black and white moral arguments for and against the death penalty. I'm thinking of the issue of whether or not the person who is being executed for the crime actually committed the crime.

KAPLAN: Right. I think Tom is referring to -- and what he experienced at that meeting was that moral debate about whether a state has a right to kill its citizens. That's been the debate about the death penalty for over 200 years. Starting in the 60s and into the '70s, we saw the debate turn to something about fairness, whether it could be applies so that people being charged with capital murder would get due process and equal protection. That concern over fairness then moved into a concern about innocence. That was the last 20 years or so, we've seen the debate focus on innocence. There have been over 100 people that have been exonerated from death rows, and at least two instances of what looked to be fairly likely wrongful executions, although they're not proven. And I think what's happened in California, and everywhere in the United States, those concerns, especially about innocence, have driven the expense so that basically it's the cost of doing an appropriate appeal so that your death penalty institution is fair and doesn't execute innocent people that drives the expense what is now what the Safe campaign and prop 34 is focusing on.

FUDGE: I would say that that last comment we heard from pastor Shockley where he said that humans are unable to ultimately judge innocence and guilt, he was coming at it from a religious point of view. But it really does dovetail with the subject that we were just talking about that essentially says no justice system, no justice system is good enough that it will always get it right. There will always be an innocent person that is executed. And there are those who would say it's better to let 20 guilty men go free than execute one innocent man.

CAVANAUGH: I want to go back to the cost savings again. That was what supporters really pushed this time around in getting this measure on the ballot and in trying to get support for this measure from voters. Supporters say prop 34 will free up about $100 million. That could help solve unsolved crimes. That seems to be a new angle to the death penalty debate. And I -- is that why some big-name prosecutors you think support this measure?

FUDGE: Well, I was listening in on a legislative hearing on this subject and one person who spoke in favor of prop 34 was gill garsety. He used to be the District Attorney in LA County, and he said the death penalty is broken and it cannot be fixed. He mentioned the fact, and they mention the fact that about 900 people have been condemned to death in California since 1978 when the death penalty was reinstated, we've only executed 13. He talked about the cost that was -- people in favor of prop 34 just consider to be obscene. Now, what prop 34 has done is put a provision in the proposition that says all this money, this hundred million dollars is going to toward solving other crimes, WHICH they consider to be a good thing to do and a wise move.

CAVANAUGH: Professor Kaplan, Tom brings up the idea, and we should explain the death penalty in California background. It was reinstated. We didn't have it for a little while, and then it was reinstated in the '70s.

KAPLAN: Sure: The history of the death penalty in California is like the history of the death penalty in states that have the death penalty in the United States. Historically it was used as a routine part of the criminal justice system. And then in the '60s, all around the country, there was a lot of judicial activity toward abolishing the death penalty. And that happened in 1972 in the case ferman versus Georgia, based on the principle of arbitrariness. So in California like everywhere else, there was no death penalty from 1972 to 1976 when Greg versus Georgia authorized capital statutes to take place again. Like many other states, Californians wanted a death penalty. So the new statute, in the form of a Proposition, was created earlier than 1976, but it was only able to be implemented after the Greg versus Georgia case happened. And it's important to know we talk about the death penalty, we talk about the modern era, which is from 1976 until now. And California's statute is similar to many other state statutes. It's supposed to contend with the concerns over arbitrariness through having a guilt phase and a penalty phase. But as Tom mentioned, it doesn't work in California. Gill garsety, I think his comment illuminates the attitude of many who say this: I like the idea of the death penalty. I think it's a good idea. I'm not French. I don't see it as a human rights violation. But this institution is a disaster. And it's especially disastrous in California.

FUDGE: And it has gotten to the point, and I think some prosecutors have said this, that it's almost a joke that we play on victims' families where you tell them we're going to give you justice by taking this person's life, and the life is never taken. People on death row are much more likely to die of natural causes, than they are likely to die of executions. I have some information on that here. I'll tell you what it is as soon as I find it!

[ LAUGHTER ]

CAVANAUGH: You gave us a really good primer of where we've been with the death penalty. I want to bring us up-to-date. And since 2006, it's my understanding we haven't had an execution.

KAPLAN: That's right.

CAVANAUGH: In California. Legal there are approximately 900 people on death row?

KAPLAN: The number is 726, I believe, and that 900 number would be because all of those people were sentenced to death, 13 of them were executed, and a couple hundred of them probably got held over.

FUDGE: 85 have died prior to being executed.

CAVANAUGH: I see.

FUDGE: Some of those were suicides, but most of those were -- died of natural causes.

CAVANAUGH: Why have there been no executions since 2006?

KAPLAN: We're in a legal moratorium because a California judge ruled that the method of lethal injection risks the possibility of pain. And this is because the method of lethal injection, it's to include the administration of three chemicals. One chemical anesthetizes you, are the next paralyzes you, and the third chemical kills you. And the concern is what would happen would be that you could not correctly administer the anesthesia. So the person would be paralyzed but conscious. And then executed. And the concern over that is what drives the current legal moratorium.

CAVANAUGH: When we hear about the fact that there have been no executions since 2006, and the fact that people point to this as saying that the death penalty is not functioning correctly in California, wouldn't an alternative argument be well, let's fix that? If we say we're going to have a death penalty, if we say that some crimes deserve execution as just punishment, then let's change this system and get it moving to the point where some people have justice as some people would look at it done to them.

FUDGE: And Maureen, that's exactly what proponents of the death penalty say. The state has allowed this situation to be created where we just don't execute anybody anymore. Texas manages to execute some people. And say they're saying if we spend the money that we need to make sure that people on death row get an appellate attorney appointed to them not after five years but right away, that would speedup the process. To speed up the process, you need two things. Money and political will. And at this point people looking at the system would probably conclude that you don't --

KAPLAN: You don't have either of those things.

FUDGE: Neither of those things in California

KAPLAN: There's kind of a calculation. I think California's ambivalence about the death penalty is manifest in that people like the idea of it, but once the reality of the machinery or the institution is revealed to them, they don't like it examine because they're afraid of A, innocence. We got to fund these appellate attorneys because we do not want to execute an innocent person. And less to the forefront but still in people's minds is fairness. Basically if you don't fund the appellate system, you risk a wrongful execution, and it's going to cost way too much.

FUDGE: We were having a conversation before we came in, and it was interesting because we were talking about the fact that one issue this gets down to is what should be our ultimate punishment? There was a man who was just convicted of many, many murders in Norway what is getting 17 or 20 years behind bars. In the United States we would find that outrageous that you would kill so many people and not spend the rest of your life in prison. So what is going to be the ultimate punishment? Is it going to be life in prison without the possibility of parole, is it going to be death? What is justice? And there are differing opinions on this among people in the United States and around the world.

CAVANAUGH: Let me just ask you in closing, what is public sentiment on this issue? What do the polls say?

KAPLAN: I don't know the most recent polling. I think it's actually improved.

FUDGE: Well, the latest poll that I have seen, and I think this was done in the latter part of last month was a field poll which showed that it's very even. The latest poll I have seen shows that about 43% are in favor of prop 34, about about 45% are against, and the rest are undecided.